Life insurance settlements have caused a great deal of confusion for broker dealers in the last 24 months as more and more registered representatives are becoming aware of this controversial wealth management strategy. The life settlement is the sale of an unwanted, unaffordable or underperforming life insurance policy that is sold to an institutional purchaser in lieu of letting the policy lapse. As Registered Representatives grapple for the go ahead with their compliance department, they are usually confronted with mixed answers as to its viability. To be sure, this strategy is an area of concern for broker dealers and NASD members alike. Mary Schapiro, Vice Chairman of the NASD, spoke at the Chicago NASD Conference on May 25th, 2005. She addressed, in part, three central issues:
1. “The first risk is to assume that baby boomers have a level of financial acumen that eliminates the need for proper suitability analysis”.
2. “A second risk comes from the very product innovation that has generally served your customers so well”.
3. “A third risk is a failure to analyze the status of these new products under the federal securities laws.”
Chairman Schapiro goes on to say that equity indexed annuities are securities as well as life settlements and may constitute a “selling away” problem amongst other concerns. She explains: “Equity-indexed annuities are only one example of a financial product that a firm might erroneously treat as a non-security. Other examples include tenants-in-common exchanges, and life settlements. NASD considers all of these products to be securities, subject to firm supervision.
The NASD is the “watchdog of the SEC” and its sole existence is to protect the investment public. One of their preoccupations is to keep in check the “egregious overcharging” of fees that are generated by manufactured investment products. There seems to be a correlation by the NASD as to their concern with the nature and size of fees that have been generated by the life settlement transaction.
The question remains; are life settlement transactions securities? The question of whether life insurance settlements are to be treated as securities is divided into two parts-whether we are discussing the back end sales activity, i.e. the distribution of interests in a policy or pool of policies, or the front end activity, i.e. the solicitation and facilitation of the sale of a policy to a life settlement company. Once the policy has been sold into the secondary market then one could conclude that the “transfer for value rule” has been applied and the insurance contract could be construed as a security. Many, however, would conclude that the up-front transaction of a life settlement would not be subjected to securities law and jurisdiction.
Why all the Fuss?
Does the life settlement market deserve such attention? According to the 2004 Life Insurers Fact Book, compiled by the American Council of Life Insurers, there is $9.4 trillion of life insurance in-force on 167 million policies. Coupled with the fact that emerging demographics show our beloved “Baby Boomers” are hitting retirement and you can clearly see that the life settlement market is getting on everyone’s radar screen.
Moreover, according to the Conning Research and Consulting whitepaper, “Life Settlements, The Concept Catches On” 2006, they explain that the average life settlement offer approximates 25% and 30% of face amount.” If it is true that approximately 35% of all settlement proceeds will be re-deployed into new investment vehicles for growth or income then one can draw the conclusion that broker-dealers should have a vested interest. This rings particularly true where there is competition for registered representative recruiting where he or she can potentially increase their gross commissions.
This article will examine the potential NASD issues and possible solutions towards the adoption of life insurance settlement program. It is not intended to support the notion that a life settlement is a security, but to give a better understanding in the event that a broker-dealer wishes to add the strategy as a new profit center.
The first consideration from a compliance perspective is how to treat the life settlement. Some wire-house compliance departments for example have treated life-settlements as a passive referral and do not except compensation. The common thought being that they can reap the compensation by re-deploying the proceeds towards a traditional product such as a stock, bond or mutual fund. In that way, as the reasoning goes, they did not complete a securities transaction and therefore did not violate NASD procedure. Moreover, many of these firms use the life settlement strategy towards the replacement of underperforming or outmoded insurance.
For example: Client Clara has a $1,000,000 life insurance policy and is paying $60,000 a year in premiums. Broker Bob tells her that she can sell the policy in the secondary market and use the proceeds to pay for new coverage with a new no-lapse guarantee. She sells the policy for $300,000 and uses the money to buy a new $1,500,000 with premiums less than her original premium costs.
Many broker-dealers have adopted this passive non-compensation approach to life settlements. Other broker-dealers see the product a way to offset lagging markets and infuse new streams of revenue for the firm.
We need to become more educated towards understanding of how to address complex compliance issues as it pertains to life settlements. There are many factors that go into how the life settlement program should be installed into a BD system. For example: Should the BD look at the program as a security or strictly as an outside business activity. There are few firms that can provide answers to these complex questions that will provide consulting as it concerns life settlements.
Involving the notion that a life settlement is a security, it is critical to understand what a security is to determine if it is applicable to life settlements. The keystone case on the definition of securities is SEC v. W.J. Howey.1 In Howey, the Supreme Court was asked to define the term “investment contract” since the term is used in the definition of a security under the Securities Act of 1933. In its decision, the Court defined an investment security as any transaction that: Involves the investment of money, in a common enterprise, with an expectation of profit, and which occurs solely from the efforts of others. It is immaterial if the enterprise is evidenced by formal certificates or nominal interests in physical assets. In SEC v. Mutual Benefits Corp. the Eleventh Circuit affirmed a U.S. District Court finding that Mutual Benefits was involved in a viatical settlement contract that qualified as “investment contracts” under the securities act of 1933 and 1934. Prior to the Mutual benefits case the settlement industry consistently cited a district court decision, SEC v. Life Partners Inc. as the basis for insurance regulation of the settlement business. Despite losing, the SEC has persisted in its opinion that investments in settlements are securities. The precedent set by SEC v. Mutual Benefits has created a cavalcade of potential securities issues that should be looked at by a seasoned expert in the settlement/NASD industry.
Just as important is the fact that many Broker-Dealers have chosen to ignore the life settlement in the hopes that they can one day claim ignorance. This “stick your head in the sand” posture is a recipe for disaster because empirically the NASD has made it quite clear that they will not tolerate this kind of strategy under any circumstances.
Common sense dictates that in order to avoid problems is to always place the client’s best interest first, thus preventing problems by not being compliant.
There are many rules, regulations and strategies that would apply to life settlements under NASD guidelines. This article will only examine some very germane issues. It is important to note that any prudent compliance department will need to adopt written procedures on processing life settlements.
RECOMMENDED NASD PROCEDURES
In offering life settlement services in a prudent SEC and NASD compliant manner we must understand how the strategy must apply NASD procedures. Thus far, the SEC and the NASD have not definitively become the official SROs of the life settlement industry although they have prosecuted and taken punitive actions on RRs. To be sure, the NASD has declared that the back-end of the transaction is a security and has made it clear that “fractionalization “is a dangerous area of the product. The program has gained in popularity and the aforementioned regulation body will likely lead the regulatory charge. It is therefore extremely important to understand written procedures concerning: While there are over 20 identifiable issues and strategies that may influence NASD procedures, here are 7 that should apply immediately:
1. NASD Rule 2320 (g) (1) (Best Execution)
2. NASD Rule 2110 “Standards of Commercial Honor and Principles of Trade”
3. NASD Rule 2310 “Recommendations to Customers” (Suitability)
4. NASD Rule 2430 “Charges for Services Performed”
5. NASD Rule 3030 “Outside Business Activities of an Associated Person”
6. NASD Rule 3040 “Private Securities Transactions of an Associated Person”
7. NASD Procedures (*should be Written and Consistent)
NASD Rule 2320: Best execution via the “3 Quote Rule” is applicable anytime there is an offering to the general public. That is to say, we as professionals are held to the highest of standards and have a fiduciary to get the best pricing for our clients. This due diligence process is to ensure against improper favorite company choice and price fixing. The fact that the firm has multiple offers may not be enough. Indeed, it is extremely important to have more than 3 quotes to get best execution, due to the providers that will”take a pass” at acquiring the insurance contract. Today, there are broker-dealers currently engaging in life settlements that are likely in violation of this procedure.
NASD Rule 2110: High Standards of Commercial Honor and Principles of Trade are paramount to stay compliant. The NASD has ruled and punished both broker-dealers and registered representatives combining rule 2110/ 3030 & 3040 as it pertains to life settlements. It is important to note that their may be “failure to supervise” issues where selling away and private placements are conducted.
NASD Rule 2310: The NASD has made it clear that we all must conduct our business in manner consistent with the customer’s objectives and corresponding suitability. Moreover, we must disclose all material facts and maintain full disclosure. By not offering a beneficial strategy when appropriate is in direct conflict with NASD Rule 2310 (b) (4). (B.D. Beware)
NASD Rule 2430: Charges, if any, for services performed, including miscellaneous services such as collection of moneys due for principal, dividends, or interest; exchange or transfer of securities; appraisals, safe-keeping or custody of securities, and other services, shall be reasonable and not unfairly discriminatory between customers .States that regulate excessive fees must be adhered to appropriately. Empirically speaking the NASD sees excessive fees to be anything over 5-6%. Since life settlements create value in excess of the insurance policies cash surrender value then a payout grid can be established to comply with NASD rule 2430. One should seek out professional consultation concerning this very paramount issue.
NASD Rule 3030: No person associated with a member in any registered capacity shall be employed by, or accept compensation from, any other person as a result of any business activity, other than a passive investment, outside the scope of his relationship with his employer firm, unless he has provided prompt written notice to the member. As previously stated, the NASD has made it clear that life settlements are included in their interpretation of “selling away” and it is a paramount area of concern where improper supervision exists.
NASD Rule 3040: Provides, among other things, that prior to participating in a securities transaction outside the course or scope of his or her employment, a person associated with a member firm must give that firm prior written notification. In addition, if the firm is notified that the associated person may receive selling compensation, it is required to issue written approval or disapproval.
Licensing and Compensation Issues
The “Desk Drawer Broker Dealer”
This strategy is very simplistic in nature and is a logical alternative to partnering with a single Funder. The interested broker-dealer would create a selling agreement with specialized broker-dealer component that would conduct the life settlement transaction for a fee. All transactions would meet NASD requirements including best execution. The broker-dealer with the unwanted policy would transact under an arms length arrangement.
NASD “Blue Sky”Regulations
Aside from having a general securities license series 7 and series 63 there are some guidelines that should be adhered to. Although there is confusion by many of the Funders as to how life settlement transactions should be conducted from state to state, it is logical that the broker-dealer and its Registered Representative must maintain registrations in the state from which the compensation originates, i.e., the Funder’s home state of business transactions. It should be emphasized however, that it is good business practice by a RR to become authorized in every state that he or she plans on conducting the business of life settlements.
Variable Policy Clearing
Although many of the policies sold in the secondary market are fixed, there is the occasion when “variable rescue” may come into play. In this situation it is always advisable to clear through a “desk drawer” broker-dealer as mentioned above. Needless to say, moving the sub-accounts to the policy’s money market does not constitute a fixed product and thus is not sufficient to avoid potential NASD regulation.
USA PATRIOT Act in October 2001Life settlement transactions are not excluded and should comply with all rules and regulations concerning the USA Patriot Act. Therefore, in order to comply with anti-money laundering (AML) laws, it follows that a normal business model of compensation payment could include the settlement broker firm notifies its contracted employee and RR/BD of the specific dollar amount of a transfer that will derive from a source Provider firm. The Registered Representative notifies the broker-dealer about the payment amount and its source to ensure Blue Sky registrations. After the broker-dealer receives the payment to the Registered Representative (in compliance with NASD guidelines), the Registered Representative will deposit the funds into his LLC bank account (in compliance with the aforementioned IRS guidelines), and provide separate invoices that meet uniform and specific identification requirements to both the agent’s broker-dealer and to the life settlement broker firm. The invoices will be signature executed by each entity and returned to the Registered Representative for inclusion in a permanent file as the compensation recipients. After payment is made by the Registered Representative’s LLC to the agent’s broker-dealer and to the life settlement broker firm, the latter will provide the Registered Representative with an electronic copy of the specific case file that the Registered Representative will keep in the same permanent file as the related invoice copies.
The Life Insurance Settlement is an emerging and often misunderstood industry. While the idea of selling an insurance policy has been around for over a century, we are now entering an era where it may become commonplace. The secondary market, while still in its infancy, seems to have “turned the corner” and is quickly becoming a permanent part of our financial and wealth management planning. As the industry expands and matures we will see more and more seniors benefit from the strategy. Moreover, we will see Registered Representatives enjoy creating new a new source of funds for their clients which they in turn will place in a more suitable and more appropriate investment. Today, more than ever, broker-dealers and wire-houses are placing into effect “written procedures” or are learning the potential benefits of the secondary market for life insurance. If conducted with prudence and with strict adherence to NASD rules and regulations life settlements should become a major component of mainstream wealth management for the broker-dealer and wire-house community.